Lane v. Spence

• Decision Date: 05 November 1903
• Docket Number: 13,156
• Citation: 97 N.W. 299,70 Neb. 204
• Parties: JAMES K. LANE v. JAMES NEWTON SPENCE
• Court: Nebraska Supreme Court

97 N.W. 299

70 Neb. 204

JAMES K. LANE v. JAMES NEWTON SPENCE

No. 13,156

Supreme Court of Nebraska

November 5, 1903

ERROR to the district court for Saline county: GEORGE W. STUBBS JUDGE. Reversed.

REVERSED.

George H. Hastings, Fayette I. Foss and Ben V. Kohout, for plaintiff in error.

E. S Abbott and Ray Abbott, contra.

AMES C. HASTINGS and OLDHAM, CC., concur.

OPINION

AMES, C.

This action was brought by the defendant in error, hereafter called plaintiff, against the plaintiff in error, James K. Lane, and Anna L. Cave and William Britton, to recover damages for having, as is alleged, alienated the affections of and enticed away the plaintiff's wife. Lane was the father of the wife, Mrs. Cave was her sister and Britton was her brother-in-law; and the wrong complained of was alleged to have been committed by "the defendants and each of them," but they are not explicitly accused of having acted in conspiracy, and counsel for the plaintiff disclaims an intent to charge conspiracy and says that the petition, properly interpreted, does not contain that charge or, in other words, allege that the parties acted in concert, although the conduct of each, of which complaint is made, was contemporaneous with that of the others. It is further alleged, and seems to have been proved on the trial, without contradiction, that the wife did leave her husband's home on the 14th day of August, 1901, being at that time about four months advanced in pregnancy, and did not thereafter return. The petition contains the following further allegation:

"That after the aforesaid enticing by the said defendants, and while the said Ada Mabel Spence was apart from her husband, as aforesaid, and under the control and direction of these defendants and each of them, an abortion was performed upon the person of the said Ada Mabel Spence, just how, when and by whom, this plaintiff is not advised, which abortion was performed in such a rude and unskillful manner as to cause her death, as aforesaid, in the city of Lincoln, Nebraska, on the 24th day of October, 1901."

The answers, so far as they are pertinent to the present inquiry consisted of general denials. A trial resulted in a verdict and judgment in favor of the defendants Cave and Britton; and in favor of the plaintiff, and against the defendant Lane, for damages. Lane alone prosecutes this proceeding in error. There was evidence offered and admitted as tending to show that Lane had been guilty of the conduct of which he was accused, the sufficiency of which we are not, however, at present called upon to...